Direct Request (CEACR) - adopted 2003, published 92nd ILC session (2004)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Mongolia (Ratification: 1969)

The Committee notes the information contained in the Government’s report.

Articles 2 and 3 of the Convention. In its previous comments, the Committee noted that under section 3.1 of the Labour Code an employee is defined as a "citizen" and under section 6.1 "employees" have the right to assemble with other employees for protecting their interests. Furthermore, section 3 of the Trade Union Rights Act and article 16(10) of the Constitution also refer to "citizen" rights to join and form trade unions. Section 113.2 of the Labour Code provides that regulations governing the employment of foreign citizens shall be adopted by the Government. The Committee therefore requests the Government to send the regulations adopted in this respect, including the provisions related to foreign workers’ right to organize.

The Committee further noted that the determination of an "employee" under section 3.1 is based on the existence of a "contract of employment". The Government is requested to indicate in its next report whether this definition has the effect of excluding certain groups of workers who are not governed by a contract of employment.

With regard to the 1997 Law on Non-Governmental Organizations the Committee had requested the Government to specify whether this Law was invoked for the registration of workers’ and employers’ organizations and, if not, to indicate the procedures governing registration of these organizations. The Committee notes the information given by the Government in its report that this law applies to employers’ organizations but not to trade unions. The Committee therefore asks the Government to indicate the manner in which workers’ organizations are registered.

Finally, the Committee notes that according to article 15, paragraph 1, of the Law on Government Service and the information in the Government’s report, it would appear that government administrative employees (governing and executives posts) do not enjoy the right to organize. The Committee recalls that senior officials and public servants holding managerial or supervisory positions of trust should be entitled to establish their own organizations (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 57) and therefore requests the Government to indicate the manner in which all workers, including managerial level public servants, are ensured the right to organize.

Article 3. The right of workers’ organizations to organize their activities and to formulate their programmes. 1. Third-party intervention. The Committee notes that section 10.1 prohibits third-party involvement in collective bargaining, under penalty of a fine established in section 141.1.10. Furthermore, section 120.9 prohibits third parties from organizing a strike also under penalty of a fine. The Committee considers that these prohibitions constitute a serious restriction on the free functioning of trade unions and requests the Government to indicate in its next report the measures taken or envisaged to amend these two provisions so that unions may have recourse to third persons where necessary in the organization of their activities, negotiation of their agreements and organization of industrial action.

2. Sympathy strikes. The Committee further notes that section 120.9 noted above would appear to have the impact of prohibiting sympathy strikes. In this respect, the Committee recalls that workers should be able to engage in sympathy strikes, provided the initial strike they are supporting is itself lawful (see General Survey, op. cit., paragraph 168). The Committee requests the Government to confirm whether sympathy strikes are indeed prohibited under this section and, if so, to indicate in its next report the measures taken or envisaged to amend this section so as to ensure that workers will not be punished for engaging in sympathy action when the initial strike is lawful.

3. Strike duration. The Committee also notes that section 120.4.2 requires that strike notice includes an indication of the duration of the strike. The Committee considers that a requirement that the duration of a strike be announced when giving strike notice is contrary to the right of workers’ organizations to organize their activities and formulate their programmes in full freedom. The right to strike is, by definition, a means of pressure available to workers and their organizations for the promotion and defence of their economic and social interests. The Committee therefore requests the Government to amend its legislation so as to ensure that no legal obligation to notify the duration of a strike is imposed on workers’ organizations and to keep it informed of measures taken or envisaged to repeal this requirement.